Romy Johnson v. Stevon Forrester (2013)

MEMORANDUM OF DECISION

The plaintiff, Romy Johnson, and the defendant, Stevon Forrester, were never married but are the parents of Caitlyn Forrester–Johnson who was born on November 13, 1994.   The defendant acknowledged paternity of Caitlyn in the State of New York on November 15, 1994.   There is a lengthy history of proceedings in the courts of New York dealing with the support of Caitlyn.   This history is contained in decisions of the Family Court of New York found in the court's file.   The court will not repeat that history except as necessary to make the orders set forth below.

Although the plaintiff's motions provide that she registered the Family Court order in Connecticut on March 1, 2001, there is nothing in the records of this court to show that registration.   However, on May 25, 2012, the defendant registered with the Clerk of the Court the orders of the Family Court of the State of New York, County of Westchester including a 2005 modification.   Although the defendant argues that this order was registered in accordance with the provisions C.G.S. § 46b–213h, this is not true.   That section provides, in relevant part, that a support order of another state may be registered in Connecticut by sending certain records and information to Support Enforcement Services for filing in the registry of support orders of the Family Support Magistrate Division.   That is not what happened here.   Instead, the defendant came to the Superior Court Clerk's office and registered the New York judgment in accordance with the provisions of C.G.S. §§ 46b–70 through 46b–75.   Although these sections are titled “Enforcement of Foreign Matrimonial Judgments” and the parties were never married, those sections also apply to any judgment, decree or order ‘for the custody, care, education, visitation, maintenance of children.’ “

On January 11, 2013 the plaintiff, who now lives in Connecticut, filed a motion for order (# 105) and a motion for contempt (# 106).   A hearing was held on June 26, 2013 at which time both parties testified.   On July 9, 2013 the defendant filed a motion to dismiss (# 109.05).   Both parties filed post-hearing briefs and engaged in oral argument on November 5, 2013.   Each motion will be decided in turn.

1. Motion to Dismiss

The defendant's motion to dismiss is based on an interpretation of C.G.S. §§ 46b–213g through 46b–213r.   Those statutes do not apply to this case.   This is not an attempt to enforce a foreign order through the Family Support Magistrate Division.   The New York judgment was registered with the Superior Court Clerk's office not with Support Enforcement Services.   Because the registration was not made in accordance with §§ 46b–213g through 46b–213r, no notice was sent to the plaintiff by the Family Support Magistrate Division or Support Enforcement Services as is required by § 46b–213k.   For those reasons, the court must reject the defendant's argument that the plaintiff's motions should be denied because of the language of § 46b–213k which gives the non-registering party twenty days to contest the validity of the foreign support order registered with the Family Support Magistrate Division.

The New York judgment was registered with the Clerk in accordance with the provisions of § 46b–71.   The defendant gave notice to the plaintiff pursuant to § 46b–72.   There is no provision in those sections which would limit the plaintiff's right to recover arrearages which had accumulated before the registration.   The motion to dismiss is denied.

2. Motion for Order (# 105)

The plaintiff requests an order for the defendant to contribute to the college expenses of the child.   The plaintiff testified that Caitlyn is currently a college student and that she has a tuition and board bill of $30,000 for this academic year.   The plaintiff seeks to have the defendant pay 50% of that bill.   This motion must be denied for the reasons discussed briefly.

The plaintiff does not argue that college expenses can be ordered in accordance with C.G.S. § 52–56c.   Instead, the plaintiff argues that a college education order can be entered in accordance with New York law.   It is undisputed that the New York judgment did not order the defendant to contribute to the child's post-secondary education.   But, in her brief the plaintiff makes a rather perfunctory argument that although New York does not normally require payment for college education absent agreement of the parties, there are special circumstances which may entitle the court to find it necessary for the non-custodial parent to accept responsibility for part of the child's college tuition.  Samuel v. Venegas, 126 AD.2d 145 (1987).   These special circumstances are:  1) the educational background of the parents;  2) the child's academic ability;  and 3) the father's financial ability to provide the necessary funds.  Id.

The plaintiff and the defendant are both educated people.   The plaintiff is a nurse and the defendant is an attorney.   Caitlyn is a good student who attends college.   The defendant is a financial planner with U.S. Trust with a net weekly income of $2,125.   So, there appears to be circumstances which, under New York law, might entitle the court to order the defendant to pay a portion of Caitlyn's college expenses.   However, under New York law, the defendant is still obligated to pay child support to the plaintiff in the amount of $231 per week ($12,000) per year despite the fact that Caitlyn is away at college.   As long as the defendant is obligated to pay child support in that amount the court will not exercise its discretion to order an additional sum for education expense.

3. Motion for Contempt (# 106)

The plaintiff claims that the defendant has wilfully violated the New York judgment in that:  1) he has failed to pay unreimbursed medical expenses in the amount of $10,465.32 and unreimbursed dental expenses in the amount of $1,672.50.   These claims arise from 2008 through 2012 and relate to the defendant's obligation under the 2005 modification that as of January 1, 2007 the plaintiff was ordered to cover Caitlyn on her medical insurance and that the defendant was ordered to pay 50% of the cost of the insurance and 50% of all unreimbursed medical not covered by medical insurance.   The defendant was ordered to cover Caitlyn on his dental plan and the plaintiff was to reimburse 50% of such coverage.

The problems arose from the plaintiff attempting to make things easier for the defendant by holding the claim for reimbursement of Caitlyn's medical and dental insurance premiums while he was unemployed.   By the time the plaintiff presented the claim for reimbursement to the defendant there were five years at issue (2008–2012) at a total sum of $10,456.32.   The defendant has not paid this sum and has forced the plaintiff to file this motion for contempt.   The defendant's failure to pay is found to be wilful.

At the initial hearing on June 26, 2013, the defendant claimed that the plaintiff's documentation of the unpaid premiums was inadequate under New York law.   The plaintiff's proof consisted of her own testimony that she paid the premiums through direct deduction from her paycheck and through introduction of the premium rate schedule from her employer for each calendar year.   The total premiums paid in each year were the product of simple mathematics.   The defendant's share represents 50%.   The court asked the parties to submit briefs on the defendant's claim that New York law has some special requirement regarding documentation of damages.   The defendant did not provide the court with any New York requirement which is different from Connecticut law that damages must be proved by a fair preponderance of the evidence which may consist of direct testimony or documentary evidence or a combination thereof.

The plaintiff also claims that the defendant owes $1,542.50 for out-of-pocket dental surgery and orthodontist expenses for Caitlyn incurred in 2007–2009.   This testimony was extremely confusing to the court.   It is apparent that the plaintiff failed to account for payments made by the defendant's dental carrier.   The plaintiff has the obligation of proving her damages by a fair preponderance of the evidence.   She has failed to do so with regard to the claim for dental and orthodontic reimbursement of $1,542.50.

In summary, the court finds that the defendant is in contempt of court for his failure to reimburse the plaintiff for 50% of the medical and dental premiums paid by the plaintiff.   The defendant is ordered to pay the sum of $10,465.32 to the plaintiff on or before February 1, 2014.   The defendant is also ordered to pay to plaintiff on or before February 1, 2014 the sum of $2,500 toward the attorneys fees she incurred in prosecuting this motion for contempt.

BY THE COURT,

John W. Pickard

Pickard, John W., J.